United States v. Michael Castagnet

MAHONEY, Circuit Judge,

concurring:

I am in complete agreement with Judge Glasser’s thorough and thoughtful opinion, except for its conclusion that we review the issue whether Castagnet abused a trust de novo. 18 U.S.C. § 3742(e) (1988) was amended in 1988 to specify that reviewing courts shall “give due deference to the district court’s application of the guidelines to the facts.” Since this case calls for the application of U.S.S.G. § 3B1.3 to undisputed facts, “the question of what is the standard of appellate review is answered by relatively explicit statutory command.” Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988).

Accordingly, I believe our review in this case should be on a “due deference,” rather than de novo, basis, consistent with our recent ruling in United States v. Young, 932 F.2d 1035, 1036 (2d Cir.1991) (reviewing U.S.S.G. § 3B1.3 determination). Under either standard, I agree with Judge Glasser that affirmance is in order.